Jacquie Seemann and Mark Branagan

Happy 2019 – is your workforce management in good shape for the year ahead?

Jacquie Seemann and Mark Branagan

11 February 2019

Award Conditions Employment Contracts Employment Policies

As people return from holidays and schools start again, the commercial year begins…

A number of developments that occurred in the employment/industrial regulatory landscape in 2018 will impact on how you do business in the year ahead.  You may be aware of and ready for all of them – but just in case, we have set out below the main developments that are likely to affect you, and changes you might want to consider in response in 2019.

1. Award issues

Casual conversion

Since October 2018, award-covered casual employees who have worked on a regular basis over a 12 month period may ask their employer to convert their employment to ongoing part-time or full-time employment.  An employer may only refuse the request on reasonable business grounds.

Employers must now give their casual employees a copy of the award clause dealing with conversion within 12 months of their first engagement.  If you have not already done so, you might like to consider a new clause in your template employment contract dealing with this issue, and/or a guideline for managers.

Flexible working arrangements

From 1 December 2018, modern awards include new rules about requests for flexible working arrangements.  Employers must now discuss any request with the employee, to try to reach agreement about any changes to working arrangements. Again, employers may also only refuse a request on reasonable business grounds.

Keep an eye out for our blog on a recent case discussing what may and may not be a ‘reasonable business ground’.

No more casual double-dipping?

Following the widely publicised decision in Skene v Workpac1, new regulations have been proposed to prevent casual employees from potentially ‘double-dipping’ by receiving both a 25% casual loading and entitlements that are typically reserved for ongoing employees, such as annual and sick leave.  If the regulations are made, you may need to consider changes to policy and/or payroll processes.

Whether the new regulations come into operation or not, Skene changes the risks of allowing casual employees to work regularly over any lengthy period, and the use of so-called ‘permanent casuals’.  The nature of those risks now depends on Workpac’s test case about casual employees, which will most likely be heard by the Full Court of the Federal Court in April 2019.  Watch this space…

2. Family and domestic violence leave

Since 6 December 2018, all employers are required by the NES and modern awards to grant unpaid family and domestic violence (FDV). You might choose to refer to FDV leave in your policy and/or contracts – but in any case you will need to consider how to implement the entitlements in practice, and whether there is any additional support you could and wish to provide.

Refer to our previous blog article on the topic for more information.

3. Modern slavery

On 10 December 2018, the Modern Slavery Act 2018 (Cth) was passed. The Act requires entities based or operating in Australia that have an annual consolidated revenue of more than $100 million to report annually on:

  • the risks of modern slavery in their operations and supply chains; and
  • the actions that they are taking to address those risks, including due diligence and remediation processes.

Similar legislation in NSW, also passed in 2018, applies to commercial organisations with an annual turnover of $50 million or more. If your organisation meets a relevant revenue targets, you will need to consider how you will comply.

4. Whistleblowing

In December 2018, the House of Representatives passed the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018, which will amend laws including primarily the Corporations Act 2001 (Cth) and the Taxation Administration Act 1953 (Cth) to consolidate and broaden the existing protections and remedies available to corporate and financial sector whistleblowers.

The Senate is likely to pass the Bill in the forthcoming February sitting; so employers will need to familiarise themselves with their obligations when dealing with whistleblowers. The implications for grievance resolution procedures in your organisation may be significant.  Watch this space for our upcoming blog on this topic.

5. ALP plans?

Recently, the Australian Labor Party announced that, if elected, it would introduce national legislation regulating the labour hire industry. Proposed changes include requiring labour hire services to hold a licence that may only be obtained after passing a fit and proper person test.

Other likely changes proposed at the ALP national conference and ACTU Congress in 2018 include:

  • reinstatement of all penalty rates and removing the Fair Work Commission’s power to reduce them;
  • return of industry-wide bargaining;
  • abolition of the Australian Building and Construction Commission (ABCC); and
  • introduction of an offence of ‘industrial manslaughter’ in work health and safety laws

6. Privacy

The European Data Protection Board has now published guidelines on the territorial scope of the General Data Protection Regulation (GDPR), which may give Australian-based businesses  greater certainty about whether they are subject to the GDPR. If you have European employees, customers or other connections with Europe, it may be appropriate to review your privacy policy, including its application to your staff.

If you would like to learn more about any of these developments and/or have any questions about compliance, please contact a member of our Employment and Safety team.

Written by: Jacquie Seemann, Mark Branagan and David Chen

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References

(2018) FCAFC 131. The case concerned an employee who was engaged as a casual, and received a 25% casual loading, and, upon termination, was found to be also entitled to annual and sick leave – primarily because of his regular work patterns.